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2022 (12) TMI 1154 - AT - CustomsCondonation of delay in filing appeal - rejection of appeal by resorting to the provisions Section 128 of the Customs Act, 1962 since according to learned Commissioner the appeal has been filed beyond the condonable period of 30 days as stipulated in section 128 ibid - HELD THAT:- Although the Appellant time and again requested the department for personal hearing, granting of refund etc. etc but in response to none of these communication the department replied that the Order-in- Original has already been passed. Since they have got the copy of the adjudicating order only on 06.03.2020 therefore they had time to file appeal before the learned Commissioner upto May, 2020 but since that was Covid time therefore vide Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 r/w Notification dated 30.09.2020 the time was got extended till 31.12.2020 and admittedly the appeal was filed by the appellant on 30.12.2020. On a specific direction issued to the department by this Tribunal vide order dated 17.11.2022 to place on record the document as to when the Order-in-Original was sent and served on the appellant, learned Authorised Representative placed on record communication dated 2.11.2022 received by him from concerned Commissionerate (filed by the learned authorised representative on 25.11.2022) stating that the file concerning the appellant is not traceable in the section and hence no comments can be offered. Since the department has failed to prove/place on record anything contrary to the claim of the appellant, therefore I have left with no other option but to accept the version of the appellant which is well supported by evidence and seems to be true. As the date of dispatch of the order is not available with the department therefore the limitation will start running from the date when the same was received by the Appellant which is 06.03.2020 and after taking into account the Taxation Act, 2020 (supra) read with notification dated 30.09.2020 which extended the time till 31.12.2020 in all the cases due to covid pandemic, the appeal filed on 30.12.2020 was filed well within limitation before the learned Commissioner. Since the appeal has not been decided on merits by the 1st Appellate Authority therefore the same is remanded to the learned Commissioner with a direction to decide the same on merits after following the principle of natural justice and providing sufficient opportunity of hearing. Appeal allowed by way of remand.
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